Prenuptial Agreements are typically utilized to determine how the parties’ estate will be divided if a marital termination event, such as separation or divorce, occurs. Prenuptial Agreements can serve as a great tool in protecting yourself, your loved ones, and your assets. However, there are certain limitations of a Prenuptial Agreement and reasons why an Agreement could be found invalid. Your Prenuptial Agreement cannot:

  • Determine parenting time or custody (now known as allocation of parental responsibilities) of current or future children. The court will always look to the best interests of the children at the time of a divorce, and will not uphold any provisions related to parenting time or custody in a Prenuptial Agreement.
  • Determine child support. Child support belongs to the child, not the parent receiving payment. Child support requires either an agreement at the time of divorce (including reasons why the amount may deviate from guideline child support) or a hearing on the issue. Child support is also dependent on each party’s income at the time of divorce or separation.
  • Help you avoid paying maintenance (formerly known as alimony) in all circumstances. While Prenuptial Agreements have generally been held to be valid as to maintenance provisions, the court will likely not enforce maintenance provisions if your spouse is disabled or would be destitute or homeless due to divorce.
  • Be signed under duress or coercion. If one spouse was pressured to sign the Prenuptial Agreement and may not have signed but for that undue pressure, a Court could invalidate the Agreement.
  • Fail to accurately disclose assets. When preparing a Prenuptial Agreement, both parties will typically complete an Exhibit listing all of their assets and liabilities so that each party has an accurate picture of what the other party has at the time of signing. If a party’s Exhibit were to leave off certain assets, this could invalidate portions or the entirety of the Agreement.

Common Things Included in a Prenuptial Agreement

Prenuptial Agreements have become more common and can provide for a myriad of circumstances. Regardless of the amount of money one makes or the amount of assets an individual has, a Prenuptial Agreement offers protection and peace of mind in the event of a marital termination event such as separation or divorce. 

These are the most common reasons people typically wish to prepare a Prenuptial Agreement.

  • One or both spouses have business interests that they wish to protect. A Prenuptial Agreement can provide protection for both current and future business interests. For instance, if a party has one business currently but may open additional businesses in the future, a Prenuptial Agreement can include provisions dealing with both the current and future business interests. These provisions can provide protection the way the client, with their attorney’s counsel, deems appropriate and best.
  • One or both spouses are coming into the marriage with significant assets. Sometimes one party has significantly more assets than the other, and sometimes both parties have a significant amount of assets and both want protection. A Prenuptial Agreement can provide for the distribution of these assets so that it does not need to be litigated at the time of a separation or divorce. An attorney can assist in crafting provisions tailored to each client’s unique wishes and circumstances regarding the division of their assets.
  • One or both spouses were previously married. When one or both spouses have previously been married and have gone through the divorce process, they often want a Prenuptial Agreement to avoid some of the mistakes they believe they made with their previous marriage. A Prenuptial Agreement can greatly narrow or, in some circumstances, completely alleviate the need for litigation if a separation or divorce were to occur.
  • One or both spouses have significant debts. Although people generally think of Prenuptial Agreements in terms of protecting assets, it can also serve as a great tool in protecting a spouse from being liable for the debts of the other. It is common for one spouse to come into the marriage with significant debts from their education, or to possibly still be in school accruing the debts at the time of marriage. A Prenuptial Agreement can carve out exactly who is responsible for repayment of those debts in the event of a separation or divorce.

If you and your partner are interested in a Prenuptial Agreement, contact our offices for a free consultation!